Byers v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia

JEFFREY WAYNE BYERS
OPINION BY
v. Record No. 2269-00-3 JUDGE G. STEVEN AGEE
NOVEMBER 20, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge

Craig P. Tiller (Davidson, Sakolosky,
Moseley, & Tiller, P.C., on briefs), for
appellant.

Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Jeffrey Wayne Byers (Byers) was convicted by a jury, in the

Bedford County Circuit Court, of possession of a firearm by a

convicted felon, in violation of Code § 18.2-308.2. He was

sentenced to serve a term of six months incarceration and to pay

a fine of $1,000.

On appeal, Byers contends (1) the evidence was insufficient

to convict him of possession of the firearm, and (2) the trial

court erred by refusing his proffered jury instruction regarding

his right to be in possession of a firearm by necessity for

self-defense. For the following reasons, we affirm the

conviction.
 I. BACKGROUND

On March 14, 1999, Byers attempted to stop an acquaintance,

Deetzie Crow, from stealing a car. Crow retaliated by shooting

Byers in his right shoulder. The wounding required Byers to be

hospitalized and his right arm immobilized through the use of a

sling.

Crow apparently fled the Commonwealth after the shooting,

but Byers testified he received word that Crow "would finish the

job," so he could not testify against Crow. Byers did not know

Crow's whereabouts or whether Crow knew where to find him, but

he feared for his life. Byers, a convicted felon, inquired of

his probation officer and a police officer investigating the

shooting how to proceed to obtain permission to possess a

firearm. The officers were unable to assist Byers in his

request and confirmed to him that he could not have a firearm.

The record does not indicate Byers filed a petition under Code

§ 18.2-308.2(C) to have his right to possess a firearm restored.

On April 5, 1999, a loaded Mossberg twelve-gauge shotgun

was found by law enforcement officers in Byers' home. Teresa

Climmer purchased the firearm, at Byers' direction, on March 26,

1999. At that time, she was Byers' live-in girlfriend. The

firearm was kept in the couple's bedroom. When the firearm was

found by authorities, however, Teresa Climmer no longer resided

with Byers who then had complete access to the firearm at all

times.

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 II. SUFFICIENCY OF THE EVIDENCE

A. STANDARD OF REVIEW

When the sufficiency of the evidence is challenged, we

consider all the evidence, and any reasonable inferences fairly

deducible therefrom, in the light most favorable to the party

that prevailed at trial, which is the Commonwealth in this case.

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975). Witness credibility, the weight accorded the

testimony and the inferences to be drawn from proven facts are

matters to be determined by the fact finder. See Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

A trial court's judgment will not be disturbed on appeal unless

it is plainly wrong or without evidence to support it. See Code

§ 8.01-680.

B. ANALYSIS

Code § 18.2-308.2 makes it a crime for a convicted felon

"to knowingly and intentionally possess . . . any firearm."

Byers does not challenge his status as a convicted felon.

Instead, he argues the Commonwealth failed to prove he had

possession of the firearm. Byers contends possession cannot be

proven as a matter of law because Teresa Climmer purchased the

gun, it was primarily kept in their shared bedroom and he was

unable to use the firearm because one arm was immobilized. We

disagree.

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 "A conviction for knowingly and intentionally possessing a

firearm after having been convicted of a felony . . . requires

proof beyond a reasonable doubt of either actual or constructive

possession of the firearm." Hancock v. Commonwealth, 21 Va.

App. 466, 468, 465 S.E.2d 138, 140 (1995). Under a theory of

constructive possession, "the Commonwealth must point to

evidence of acts, statements, or conduct of the accused or other

facts or circumstances which tend to show that the defendant was

aware of both the presence and character of the [firearm] and

that it was subject to his dominion and control." Powers v.

Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).

Possession "need not always be exclusive. The defendant

may share it with one or more." Josephs v. Commonwealth, 10 Va.

App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc). Although

mere proximity to the contraband is insufficient to establish

possession, it is a factor that may be considered in determining

whether a defendant possessed the contraband. See Brown v.

Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en

banc). Ownership or occupancy of the premises on which the

contraband was found is likewise a circumstance probative of

possession. See Drew v. Commonwealth, 230 Va. 471, 473, 338

S.E.2d 844, 845 (1986).

The evidence was sufficient to establish Byers possessed

the firearm. Byers conceded knowledge of the firearm and its

location and that he had easy access to it. In addition to

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these concessions, the jury had before it the testimony of Byers

that he participated in the decision to purchase the firearm for

the protection of those residing in his home. The jury also

heard evidence that Teresa Climmer no longer lived in Byers'

home at the time the gun was found. While prior to his arrest,

Byers may have shared possession of the firearm with Teresa

Climmer, and his possession may have been constructive, those

conditions are sufficient to sustain a conviction under Code

§ 18.2-308.2. In any event, at the time of his arrest, Byers

had full dominion and control of the firearm.

Code § 18.2-308.2 also requires a finding that the

possession be intentional, and the evidence was sufficient to

support such a finding. The evidence was uncontradicted that

the firearm was purchased and kept in Byers' home at his

direction and under his supervision. There is no doubt,

therefore, that the possession of the firearm was intentional.

Byers' immobilized arm is no defense to a conviction under

Code § 18.2-308.2. The plain language of the statute prohibits

"possession" of any firearm by a convicted felon and provides no

exception from that requirement related to the felon's physical

ability to use the firearm at a particular time.

The evidence was clearly sufficient to prove Byers

knowingly and intentionally possessed the firearm after being

convicted of a felony.

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 III. THE REFUSED JURY INSTRUCTION ON NECESSITY

Byers also contends the trial judge erred in refusing his

proffered jury instruction, which provided, "[a] person who

reasonably believes that another intends to attack him for the

purpose of killing him or doing him serious bodily harm has a

right to arm himself for his own necessary self-protection."

Byers contends the evidence was sufficient to warrant the

proffered instruction to the jury on the common law defense of

necessity for self-defense. We disagree.

A. STANDARD OF REVIEW

Both the Commonwealth and the defendant are entitled to

appropriate jury instructions on the law applicable to their

version of the case. See Banner v. Commonwealth, 204 Va. 640,

645-46, 133 S.E.2d 305, 309 (1963). When evidence exists in the

record to support the defendant's theory of defense, the trial

judge may not refuse to grant a proper, proffered instruction.

See Painter v. Commonwealth, 210 Va. 360, 365, 171 S.E.2d 166,

170-71 (1969); Delacruz v. Commonwealth, 11 Va. App. 335, 338,

398 S.E.2d 103, 105 (1990). "[W]here evidence tends to sustain

both the prosecution's and the defense's theory of the case, the

trial judge is required to give requested instructions covering

both theories." Diffendal v. Commonwealth, 8 Va. App. 417, 422,

382 S.E.2d 24, 26 (1989).

In addition, although the Commonwealth prevailed at trial,

when we consider the refusal of the trial judge to give a

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proffered instruction, "'the appropriate standard of review

requires that we view the evidence with respect to the refused

instruction in the light most favorable to the defendant.'"

Seegers v. Commonwealth, 18 Va. App. 641, 643, 455 S.E.2d 720,

722 (1994) (citation omitted).

B. ANALYSIS

In support of his argument, Byers cites the Supreme Court

of Virginia's decision in Bevley v. Commonwealth, 185 Va. 210,

38 S.E.2d 331 (1946). We do not agree Bevley supports Byers'

position. We also do not find, based on the analysis applied by

this Court in Humphrey v. Commonwealth, ____ Va. App. ___, ___

S.E.2d ___ (2001), that the facts of this case entitled Byers to

the requested instruction.

1. Inapplicability of Bevley

In Bevley, the defendant was charged with murder. He had

been threatened by the victim while unarmed, but then retrieved

his firearm and allegedly shot the victim in self-defense. The

Bevley trial judge instructed the jury that

the law presumes a person using a deadly
weapon to kill another acted with malice,
and the burden is thrown upon the person so
using a deadly weapon to overcome this
presumption. But if upon consideration of
all the evidence you have a reasonable doubt
as to whether he acted with malice or not
you should not find him guilty of murder.

185 Va. at 214, 38 S.E.2d at 333.

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 However, the trial judge refused the defendant's proffered

instruction that arming oneself for necessary self-defense

negates the element of malice. The proffered instruction

provided:

[W]hen a person reasonably apprehends that
another intends to attack him for the
purpose of killing him or doing him serious
bodily harm, then such person has a right to
arm himself for his own necessary
self-protection, and in such case, no
inference of malice can be drawn from the
fact he prepared for it.

Id.

In finding that the trial judge erred in refusing the

defendant's proffered instruction, the Supreme Court did not

base its holding on the right to self-defense. The Court held

the instruction should have been granted because the defendant

had the burden to overcome the presumption of malice:

[W]hen a jury is told that the law presumes
that a person using a deadly weapon to kill
another acts with malice and throws upon the
accused the burden of disproving malice,
then the accused is entitled as a matter of
law to have the jury instructed that he has
overcome the presumption, if they believe
the evidence offered in his behalf.

Id. at 215, 38 S.E.2d at 333.

The proffered instruction in the case at bar tracks the

language of the Bevley instruction, but deletes the language

negating malice. The sole justification for the instruction in

Bevley was to rebut the presumption of malice, but malice is not

an element of possession of a firearm by a convicted felon.

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Byers' proffered instruction, therefore, was inappropriate and

his reliance on Bevley is misplaced. "It is a fundamental

principle that '[a]lthough an instruction may correctly state

the law, it should not be given if it is inapplicable to the

facts in evidence . . . [and] might confuse or distract the

jury.'" Morse v. Commonwealth, 17 Va. App. 627, 630, 440 S.E.2d

145, 149 (1994).

2. Common Law Defense of Necessity

Although Bevley does not support Byers' position, the

broader question remains as to whether he can assert the common

law defense of necessity for self-defense to the statutory

prohibition of a felon's possession of a firearm. In Humphrey,

___ Va. App. ___, ___S.E.2d ___, we recently held that the

General Assembly did not abrogate the common law defense of

necessity in the enactment of Code § 18.2-308.2. Id. at ___,

___ S.E.2d at ___. We also reiterated the essential elements of

a necessity defense:

"(1) [A] reasonable belief that the action
was necessary to avoid an imminent
threatened harm; (2) a lack of other
adequate means to avoid the threatened harm;
and (3) a direct causal relationship that
may be reasonably anticipated between the
action taken and the avoidance of the harm."

Id. at ___, ___ S.E.2d at ___ (quoting Buckley v. Commonwealth,

7 Va. App. 32, 33, 371 S.E.2d 827, 827-28 (1988)). Applying

these factors to the facts in Humphrey, we found there were

sufficient facts in that record to require a jury instruction on

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the defense of necessity to a charged violation of Code

§ 18.2-308.2.

The facts in Humphrey, however, are in stark contrast to

those in the case at bar. In Humphrey, the convicted felon was

under direct attack by gunfire in his isolated home at the time

he took possession of a firearm. Those circumstances reflected

an "imminent threatened harm," and the convicted felon had no

other means to avoid the harm.

In United States v. Crittendon, 883 F.2d 326 (4th Cir.

1989), the Court of Appeals for the Fourth Circuit decided a

case similar to that at bar in the context of 18 U.S.C.

§ 922(g), the federal equivalent to Code § 18.2-308.2. 1

Crittendon, a convicted felon had been shot and thereafter

received death threats over the telephone. He subsequently

armed himself with a pistol for self-protection from the

perceived threat and was charged with violating 18 U.S.C.

1
The Fourth Circuit has not specifically decided that the
defense of necessity can apply to a charged violation of 18
U.S.C. § 922(g) or similar statutes. See Crittendon, 883 F.2d
326; United States v. Holt, 79 F.3d 14, 16 (4th Cir. 1995)
(presented with the question of whether justification is a
defense to a charge of violating 18 U.S.C. § 13 (assimilating
Virginia Code § 53.1-203(4)), which makes it a felony for a
prisoner to "[m]ake, procure, secrete or have in his possession
a knife, instrument, tool or other thing not authorized by the
superintendent or sheriff which is capable of causing death or
bodily injury"). However, other federal circuit courts of
appeal have specifically ruled that the common law defense of
necessity can apply to a violation of the federal felon with a
gun statute. See United States v. Gant, 691 F.2d 1159 (5th Cir.
1982).

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§ 922(g). The trial court accepted Crittendon's claim that he

possessed the gun for self-defense and not a nefarious purpose.

Nonetheless, there was no evidence showing he was in any

imminent danger when he was arrested for possession of the

firearm. His conviction under 18 U.S.C. § 922(g) was affirmed

on the following basis:

[Crittendon's] claim of entitlement to an
instruction on the defense fails because the
evidence does not support a conclusion that
he was under a present or imminent threat of
death or injury. While his fear of another
attack may have been rational and might have
been his real motivation for carrying a
revolver, generalized fears will not support
the defense of justification. See United
States v. Harper, 802 F.2d 115 (5th Cir.
1986) (convicted felon who purchased hand
gun for protection after repeated robberies
of his store not entitled to justification
instruction because he was not in imminent
danger). Instead, the defendant must show
that a real and specific threat existed at
the time of the unlawful possession.

Id. at 330. 2

The criteria applied in Humphrey and Crittendon did not

entitle Byers to a jury instruction on the common law defense of

necessity to arm. While Byers contends he was in fear of bodily

2
The criteria adopted by the federal courts of appeal for
assertion by a convicted felon of the common law necessity
defense appears to require an actual threat to exist at the time
the felon takes possession of the weapon. See e.g., United
States v. Perrin, 45 F.2d 869, 874 (4th Cir. 1995); Gant, 691
F.2d at 1162. As we noted in Humphrey, the law of necessity in
Virginia does not require that the imminent threat in fact
exist. See ___ Va. App. at ___ & n.5, ___ S.E.2d at ___ & n.5
(citing McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d
808, 810 (1978).

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harm from Crow, who had shot Byers several months earlier, Byers

only had a generalized fear. At the time of Byers' arrest for

possession of the firearm, Crow had not been apprehended. While

Byers testified that threats to "finish the job" of killing him

had been allegedly made by Crow, the threats were not made

directly to him. Byers was not aware of Crow's location and did

not know if Crow knew of his.

There was no evidence at the time Byers possessed the

shotgun that he faced an imminent threat of death or injury as

was the case in Humphrey. Any threat from Crow was speculative.

Under these circumstances, the defense of necessity cannot apply

and, therefore, no jury instruction was warranted. Accordingly,

the proffered instruction was not supported by the evidence and

was properly refused. "An instruction that is not supported by

the evidence . . . is properly refused." Lea v. Commonwealth,

16 Va. App. 300, 304, 429 S.E.2d 477, 479-80 (1993).

The ruling of the trial court rejecting the proffered jury

instruction was correct, and Byers' conviction is affirmed.

Affirmed.

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